Court tosses fines on abortion provider

A state appellate court has thrown out fines levied against a New Orleans abortion provider, ruling the state health agency didn’t have the legal authority to impose the penalties.

The 1st Circuit Court of Appeal decision negated $1,200 in civil fines levied against Midtown Medical LLC for alleged “deficient practices.”

A three-judge panel found that state law required the state Department of Health and Hospitals to promulgate rules defining circumstances under which particular health care facilities can be assessed a civil fine.

Appellate Court Judge John T. Pettigrew, of Houma, wrote the opinion for the panel that determined outpatient abortion clinics are not listed as facilities that DHH can sanction. “Moreover, it is clear that an outpatient abortion facility does not fall within the scope of hospital or any other facility listed in the statute,” the 1st Circuit panel wrote.

Because the Louisiana Administrative Code under which DHH may assess civil fines excludes outpatient abortion facilities, “DHH lacked the authority to impose the fines at issue,” the panel concluded.

The court also required DHH to pay the $2.637.50 cost of Midtown’s appeal.

DHH spokeswoman Olivia Watkins said the agency’s top officials disagree with the appeal court decision and intend to file an appeal with the Louisiana Supreme Court. “The department has also filed a notice of intent to clarify regulations relevant to abortion clinics that abortion facilities shall be included in the facilities that may be sanctioned under the Louisiana Administrative Code,” Watkins said.

Ellie T. Schilling, the New Orleans lawyer representing Midtown Medical, said the lawsuit is specific to her client’s facility. “But, if DHH were not to amend its rules they could likely see a similar situation with other (abortion) facilities,” she said.

At issue was two separate $600 fines assessed in 2010 based on DHH’s determination that the facility was out of compliance with “federal and/or state rules for abortion clinics.”

A DHH letter noted the facility had “deficient practices” in violation of the Louisiana Administrative Code related to its governance and anesthesia services. The letter alleged the facility’s action or inaction in those areas “created a potential for harm by directly threatening the health, safety, rights or welfare” of its patients. Midtown officials denied the allegations and argued DHH had overstepped its authority.

Midtown appealed the finding through an informal dispute resolution process with a hearing held June 29, 2010. DHH affirmed the deficiencies. A subsequent appeal was rejected by an administrative law judge Dec. 29, 2011. Midtown filed suit and state District Judge Wilson Fields, of the 19th Judicial District Court in Baton Rouge, sided with DHH on June 12, 2012.

The 1st Circuit decision reversed the prior decisions. The panel included Appeal Court Judges Pettigrew; Jimmy Kuhn, Ponchatoula; and Mike McDonald, Baton Rouge.

An outpatient abortion facility is among the public health care facilities governed and licensed by DHH, according to state law. Under the law, the department is required to adopt rules that define specific classifications of violations, articulate factors in assessing civil fines including mitigating circumstances, such as, an effective corporate compliance program, and explain the treatment of continuing and repeat deficiencies.

DHH adopted rules in July 2000, which the agency relied upon when imposing the fines on Midtown. The rule listed adult day health centers, ambulatory surgical centers, substance abuse-addiction treatment facilities and the like, but omitted outpatient abortion facilities from covered facilities.